Hutson v. Wood

• Decision Date: 03 June 1914
• Docket Number: No. 8935.,8935.
• Citation: 263 Ill. 376,105 N.E. 343
• Parties: HUTSON et al. v. WOOD et al.
• Court: Illinois Supreme Court

263 Ill. 376

105 N.E. 343

HUTSON et al.

v.WOOD et al.

No. 8935.

Supreme Court of Illinois.

April 23, 1914.

Rehearing Denied June 3, 1914.

Error to Circuit Court, Franklin County; Jacob R. Creighton, Judge.

Partition by Margaret E. Hutson against Loren N. Wood and others, in which Wood and another filed a cross-bill against complainant and another. From a decree dismissing the bill and granting the relief prayed by the cross-bill, complainant and the other defendants in the cross-bill bring error. Reversed and remanded.W. P. Seeber, of Benton, and D. G. Thompson, of Mt. Vernon, for plaintiffs in error.

George B. Gillespie, of Springfield, George B. Holmes and Royal B. Cushing, both of Chicago, and W. S. Cantrell and William H. Hart, both of Benton, for defendants in error.

DUNN, J.

In 1907, and before, Margaret E. Hutson was the owner of lot 23 in the original town of Benton, and her husband, E. G. Hutson, was the owner of lot 24 and of 80 acres of land in Franklin county. On January 12, 1907, they both executed a mortgage on all this real estate to secure their joint note to J. T. Chenault for $1,000. On May 13, 1907, they both executed a mortgage on the same property to secure their joint note to J. T. Chenault for $10,000. A decree foreclosing both mortgages was rendered at the November term, 1908, of the Franklin county circuit court, and on January 30, 1909, all the mortgaged premises were sold under this decree by the master in chancery to J. T. Chenault for $13,704.13. On August 18, 1908, in vacation,a judgment by confession was entered by the clerk of the circuit court of Franklin county in favor of the Benton State Bank against E. G. Hutson and M. E. Hutson for $869.55 upon two promissory notes, and this judgment was assigned to J. T. Chenault on September 9, 1909. An execution issued on this judgment was levied upon the real estate sold by the master, redemption was made on March 22, 1910, from the master's sale, and on April 30, 1910, the premises were sold under the execution for $17,065 to Loren N. Wood and Harry C. Stotlar, to whom the sheriff later conveyed the premises. The purchasers immediately took, and have since had, possession of the premises. On May 14, 1913, Mrs. Hutson executed a quitclaim deed for an undivided eighth of lot 23 to her son, Seba F. Hutson, and two days later filed her bill in the circuit court of Franklin county for the partition of the lot. She made Loren N. Wood and Harry C. Stotlar and their tenants of the premises parties to the bill, and prayed that the judgment of the Benton State Bank, the execution, levy, and sale thereunder and the sheriff's deed be set aside and the title to the premises quieted in her and Seba F. Hutson, alleging that the judgment was void for want of proof of the execution of the note and warrant of attorney on which it was based; that she never authorized the entry of her appearance or the confession of judgment; that for this reason, and others appearing on the face of the record, the judgment was void; and that the notes upon which it was rendered were not given for any debt of hers. Wood and Stotlar answered, denying the material allegations of the bill. They also filed a cross-bill, alleging that Margaret E. Hutson, E. G. Hutson, and Seba F. Hutson had conspired together to obtain title to the property, which had been sold under the foreclosure decree in one tract; that the notes upon which the decree was rendered were joint notes of Margaret E. Hutson and E. G. Hutson, the last of a series of notes and renewals of former notes which were set out in the cross-bill, running through a period of several years, representing the indebtedness of both makers; that the notes upon which the judgment was rendered were also joint notes representing the indebtedness of both makers, given in renewal of former notes signed by both makers for their joint indebtedness and were signed by E. G. Hutson for himself and as the agent of his wife; that in pursuance of the conspiracy E. G. Hutson had brought a suit in ejectment to recover lot 24 and the 80 acres of land; that the foreclosure proceedings were in all respects lawful and the judgment of the Benton State Bank, and the redemption and sale thereunder, valid and conveyed the title to Wood and Stotlar. And they pray that the title may be confirmed in them, but, if for any reason it should be found that the sheriff's sale to them is void, they pray that an accounting may be had of all money expended by them on account of the property, or for taxes, special assessments, or improvements thereon, and the amount found due them decreed to be paid within a short time to be fixed by the court; that in case the amount found due is not paid within the time so fixed that the title be confirmed in them, and that E. G. Hutson be enjoined from prosecuting his ejectment suit and the defendants to the cross-bill barred from any right, title, or interest in the premises. A demurrer to the cross-bill was overruled, the defendants answered it, replications were filed, the cause was heard by the chancellor in open court, a decree was entered dismissing the bill and granting the relief prayed by the cross-bill, and the Hutsons have sued out a writ of error.

[1][2][3] It is argued that the court erred in denying the complainant's petition for a change of venue on account of the prejudice of the judge. At the September term, 1912, the cause was set for hearing at the November term, on December 10. On December 3d a demurrer to the cross-bill was argued. On December 6th the demurrer was overruled and leave was given to answer the cross-bill, and on December[263 Ill. 381]9th an answer was filed. At 4:20 in the afternoon of that day a notice was delivered to one of the defendants' solicitors that the complainant would on December 10th at 8 o'clock a. m., apply for a change of venue on account of the prejudice of the presiding judge, who was the same judge who had heard and overruled the demurrer. The right to a change of venue is absolute where a party brings himself within the provisions of the statute, but the statute requires reasonable notice, and what is reasonable notice is left to the discretion of the judge to whom application is made in the particular case, and this discretion will not be interfered with unless abused. Glos v. Garrett, 219 Ill. 208, 76 N. E. 373. The affidavit of the complainant stated that a knowledge of the judge's prejudice did not come to her until the day the notice was given but did not state the time in the day when she acquired such knowledge. The notice was not served until late in the afternoon, and the case was set for hearing the next day. Whether so short a notice was reasonable was a question to be determined by the court in view of all the circumstances, and we cannot say that he abused his discretion in this regard.

[4] The affidavit constituting the evidence of the execution of the notes and warrants of attorney on which the judgment was entered in favor of the Benton State Bank was as folows: ‘Robert R. Ward, being duly sworn, says he knows E. G. Hutson and M. E. Hutson, the maker of the annexed note, and that said E. G. Hutson executed the power of attorney hereto attached in the presence of this affiant. Robert R. Ward. Sworn to and subscribed before me this 17th day of August, 1908.’

[5][6] This affidavit is defective for two reasons: It does not purport to prove the execution of the warrant of attorney by M. E. Hutson, and, the jurat being unsigned, there is no proof that it was sworn to. In cases of judgment by confession in vacation the filing of an affidavit proving the execution of the warrant of attorney is jurisdictional. Without it the clerk has no authority to enter judgment, and, if he does so, his act is void. Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312, 58 N. E. 994. Testimony was introduced to prove that the affidavit was, in fact, sworn to before a deputy circuit clerk, who omitted to sign the jurat. Such evidence was inadmissible. ‘In cases of this character the authority of the attorney to execute the cognovit, and of the clerk to enter up judgment in pursuance thereof, should fully and clearly appear from the papers filed upon the application for judgment. Those papers, together with the judgment, constitute the record, and, like other records, it must be tried by itself, and its validity cannot be made to depend upon evidence aliunde.’ Matzenbaugh v. Doyle, 156 Ill. 331, 40 N. E. 935. The affidavit was either sufficient or insufficient. If it was sufficient, the testimony was unnecessary; if insufficient, it was unavailing. In Stein v. Good, 115 Ill. 93, 3 N. E. 735, it was argued that the validity of the judgment did not depend upon the proof of the execution of the power of attorney, but rather upon its existence and whether it authorized the confession of the judgment, but it was said that ‘in this class of cases, where the whole proceeding is strictly ex parte, and the papers filed constitute a part of the record without any bill of exceptions making them so, public interests would seem to demand that some evidence should appear in the record showing unequivocally, that the judgment was confessed by authority of the defendant in the judgment; or, in other words, showing that the power of attorney on file was actually executed by him.’ So in Gardner v. Bunn, 132 Ill. 403, 23 N. E. 1072,7 L. R. A. 729, a judgment by confession entered by the clerk in vacation, where no affidavit proving the execution of the power of attorney was filed with it, was held void.

Our attention has been called to various cases in which an affidavit having an unsigned jurat has been held a sufficient basis for the proceeding involved. In Kruse v. Wilson, 79 Ill. 233, an affidavit for an attachment the jurat to which was not signed was held sufficient to give the court jurisdiction of the proceeding. In such a case the affidavit may be amended, and the writ...